Automated Summary
Key Facts
The appellants, Mamta Teyung and Pradit Kumar, Nepalese citizens born in 1971 and 1975, appealed against the refusal of their entry clearance applications as adult dependants of a former Gurkha soldier. The First-tier Tribunal (FtT) dismissed their appeals, but the Upper Tribunal found the FtT had erred in law by failing to properly consider the existing family life between the appellants and the sponsor. The parties agreed the error required setting aside the FtT decision, leading to the appeals being allowed. The Upper Tribunal's decision was made with the consent of both parties under rule 40(3)(a), requiring no further reasons.
Issues
The main legal issue was whether the First-tier Tribunal (FtT) erred in law by dismissing the appellants' entry clearance applications as adult dependants of a former Gurkha soldier, despite having found an existing family life between the appellants and the sponsor. The Upper Tribunal determined that the FtT's decision was based on an error of law and re-made the decision to allow the appeals.
Holdings
The Upper Tribunal found that the First-tier Tribunal (FtT) erred in law by dismissing the appeals of two Nepalese citizens seeking entry clearance as adult dependants of a former Gurkha soldier, despite acknowledging an existing family life between the appellants and the sponsor. The parties agreed the error required setting aside the FtT's decision and remaking it to allow the appeals. The Tribunal set aside the FtT's decision and remade it, permitting the appeals under rule 40(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Remedies
The Upper Tribunal Judge set aside the First-tier Tribunal's decision for error of law and re-made the decision to allow the appeals of both appellants.
Legal Principles
The appeal was allowed because the First-tier Tribunal (FtT) erred in law by dismissing the appellants' applications for entry clearance as adult dependants of a former Gurkha soldier, despite having found an existing family life between the parties. The Upper Tribunal set aside the decision and remade it in favor of the appellants under Rule 40(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which permits decisions to be made without reasons when parties consent.
Cited Statute
Tribunal Procedure (Upper Tribunal) Rules 2008
Judge Name
Upper Tribunal Judge Kopieczek
Passage Text
- 4. In the circumstances, I set aside the decision of the FtT for error of law and re-make the decision, allowing the appeal of each appellant.
- 2. Permission to appeal the decision of the FtT having been granted, the appeal came before me for hearing. At that hearing it was agreed between the parties that the FtT had erred in law in its decision to dismiss the appeals of both appellants notwithstanding the finding that there was an existing family life between the appellants and the sponsor.
- 3. It was further agreed between the parties that the error of law is such as to require the decision of the FtT to be set aside and for the decisions to be re-made, allowing the appeal of each appellant.